Terminating Parental Rights of an Incest Victim

This is one those cases that’s just hard-down sad. J.A. v. Etowah County Department of Human Resources, Case No. 2070771 (Ala. Civ. App. January 16, 2009). The mother, J.A., was 13 years old when she gave birth to the child. The father of the child was her own father, M.A.

After the child was born at home, the maternal grandmother and the mother took the child to the hospital with the intention of placing the child for adoption. DHR took custody after interviewing the mother and the mother’s sister (who eventually admitted after first denying it that M.A. had sexually molested her too). The adoption failed, however, because M.A. refused to give his consent to the adoption.

Within a few weeks the mother told DHR she wished to be reunited with the child, so DHR set up a plan to assist them. Because the mother was so young and unable to care for the child alone, the plan relied heavily on the maternal grandmother. The father was eventually incarcerated. DHR later moved to terminate the mother’s parental rights, and the juvenile court did so. The mother appealed.

The appeals court described at length the evidence that the maternal grandmother failed to understand the significance of the sexual abuse that had occurred. The maternal grandmother permitted the mother to visit her father regularly, over DHR’s objections that this risked giving the father the opportunity to persuade the mother to recant her testimony about his abuse. The maternal grandmother stated repeatedly that the facts leading up to the child’s birth were in the past and “forgotten.” She blamed his sexual assault of his daughter on his drinking and expressed confidence that it would not recur now that he had stopped drinking. She repeatedly expressed her willingness to have M.A. return to the household when he was released from prison. The maternal grandmother refused to attend counseling and did not cooperate with efforts to provide counseling for her daughters, deeming it a waste of time.

The appeals court also discussed evidence that the mother seemed unable to bond with the child and that the mother and maternal grandmother failed to give the child prescribed medication during the visits. The opinion also cites evidence that DHR had to “peel” the child from the foster mother to take the child to its visitation times.

The appeals court quoted the Alabama statute on termination of parental rights, Ala. Code §26-18-7, which provides that a court may terminate parental rights if it finds from clear and convincing evidence that the conduct or condition of the parents is such as to render them unable to properly care for the child and that such conduct or condition is “unlikely to change in the foreseeable future.”

The appeals court first ruled out the mother’s ability to care for the child: “Because the mother is a 15-year-old minor who attends high school and has no income of her own, she admittedly cannot support or rear the child on her own. She is dependent on support from the maternal grandmother for her own existence. Thus, by virtue of her age and her situation, the mother is unable to discharge her parental responsibilities to and for the child, and, although that condition will eventually change, it will not change in the reasonably foreseeable future.” I added the italics. Note that this is not what the statute says. The statute says “unlikely to change in the foreseeable future.”

The mother will not be a minor forever. Should the juvenile court have continued the child’s foster care until the mother was an adult and could at least attempt to care for the child on her own? Perhaps the juvenile court evaluated this option and rejected because it believed it unlikely. If so, why isn’t this in the court’s findings? If it is in the court’s findings, why is it not in the appeals court opinion?

The appeals court stated that the juvenile court’s factual judgments after ore tenus hearing are presumed correct. “The evidence at trial supports the juvenile court’s factual findings, and we are not permitted to reweigh the evidence to arrive at a different conclusion.” The appeals court affirmed the juvenile court.